The Los Angeles DUI Law Blog

So I Refused to Take a Blood or Breath Test; Can They Force Me?

Earlier this week, we answered the classic question of: is there ever a situation in which it makes sense to refuse the blood or Breathalyzer test? In almost all circumstances, it’s a bad idea. It is true that a refusal means there is no scientific evidence of your guilt of drunk or drugged driving and therefore it is much more difficult to convict. However, just because you don’t voluntarily submit to a test doesn’t mean it’s not going to happen.

What is the worst case refusal scenario? After you refuse, the officers can still take you to a hospital and hold you down and draw your blood. So yes, they certainly can force you to give blood for a blood alcohol test. Plus, you’ll still be facing the refusal penalties, such as the one year license suspension and sentencing enhancements that require mandatory jail time, even for a first offender.

If this all sounds a little draconian to you, too bad. The United States Supreme Court ruled that it was perfectly allowable nearly fifty years ago in Schmerber v. California. In that case, Armando Schmerber was the apparent driver in a car that had been in an accident. One of the responding officers noticed the odor of liquor on his breath and observed other signs of intoxication at the scene. Schmerber refused to consent to BAC tests. At the hospital, the officer directed the physician to take a blood sample over the defendant's protests.

Why is this legal? Though the Fourth Amendment prohibits unreasonable search and seizure, exigent circumstances sometimes allow exceptions. With evidence that will expire, such as the alcohol that will eventually be metabolized by the body, time is of the essence in obtaining and preserving the evidence. A forced blood draw is therefore allowable, so long as:

  1. The taking of the sample is done in a medically approved manner.
  2. The arrest is done lawfully, meaning the officer has a reasonable belief that the driver was intoxicated.
  3. The circumstances require prompt testing.

Considering the possible penalties that come from refusing to submit to a blood or Breathalyzer test, we said it was almost always a bad idea to refuse. Add in the possibility of those penalties plus a forced blood draw that leads to your conviction on a DUI charge and a refusal enhancement, and there is pretty much no scenario in which refusal is a good idea.

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